Argued June 3, 1946
Decided July 23, 1946
Appeal from the Supreme Court, Appellate Division, First Department, LEVEY, J.
Charles Rothenberg, Daniel J. McMahon and Abraham Wilson for appellant.
Joseph H. Broderick and S. Bertram Friedman for respondent.
Before plaintiff was entitled to a judgment of separation upon the ground that defendant had failed to support her while they were living separate and apart by mutual consent, it was necessary for her to establish that she offered in good faith to return to her husband and resume the marital status. Lack of that proof required a dismissal of her second cause of action. ( Solomon v. Solomon, 290 N.Y. 337. 340-341; cf. Mirizio v. Mirizio, 242 N.Y. 74, 82.) Accordingly it was error to direct judgment of separation in favor of plaintiff and against the defendant. Insofar as the judgment directs that plaintiff is entitled to a separation and alimony it should be reversed and the complaint dismissed, without costs; otherwise the judgment should be affirmed, without costs.
The judgments should be modified in accordance with this opinion, and, as so modified, affirmed, without costs.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND and THACHER, JJ., concur; DYE and FULD, JJ., taking no part.